O'Brian v. Fry

Mr. Justice Dickey delivered the opinion of the Court: It is insisted that the findings of the court are not supported by the proofs, and, in that connection, it is suggested that the testimony of one witness can not avail against the sworn answers of two defendants, equal (as suggested) to the direct testimony of four witnesses. This position can not be sustained. In so far as matter in a sworn answer is responsive to the bill, it must be held to be true, unless contradicted by two witnesses; but in so far as matter stated in an answer is new matter—about which the bill does not call for any answer, matter set np (not in denial of any allegation of the bill) as matter of defense—the answer is not evidence at all. In this case, the complainant alleged the making of the notes and mortgage, and the failure to pay, and called on defendants to confess these allegations. The defendants admit these allegations to be true, but affirmatively allege other matter, showing that these notes ought not to be paid. As to this other matter, the sworn answers are not competent as proofs, and the burden of proof as to them rests on the defendants. Mo proof was offered in support of these allegations, and hence the finding of the Court on this record was right. It was, however, error to decree that the immediate possession of the mortgaged premises should he surrendered, in a case like this, to the complainant, before a master’s sale fully consummated, by a master’s deed, after the lapse of the statutory time for redemption. Aldrich v. Sharp, 3 Scam. 261; Bennett et al. v. Matson, 41 Ill. 343. Although the mortgagee is entitled to possession, under his mortgage, after condition broken, still it would be a vicious practice to permit a decree for a sale of the mortgaged premises to provide for putting complainant in possession between the date of the decree and the day of sale. By our laws, the defendant is entitled to the possession between the day of sale and the making of the master’s deed. The amount of the debt fixed by the decree would be unsettled by the use of the property between the time of the decree and the day of sale. Such a practice can not be sanctioned. It was also error to make a decree in personam against Mary O’Brian, the wife, that she should pay complainant, within sixty days, the amount of the mortgage debt, which the record shows was the debt of her husband only. These are errors, in substance, for which the decree must be reversed. It is objected that the record does not show that the hearing was upon the “ answers,” and that the cross-bill was not disposed of. These are mere irregularities in form. Undoubtedly an order should have been made disposing of the cross-bill, and when the record undertook to recite in detail the pleadings considered at the hearing, the answers, regularly, should have been mentioned. ' The judgment of this court is. that, in so far as the decree of the circuit court found that there was any amount due to complainant from Mary O’Brian—the sum of $555.33. or any amount whatever—and in so far as said decree ordered that she should pay to complainant that sum, or any amount of money, and in so far as said decree required said defendants, or either of them, to surrender to complainant the immediate possession of the mortgaged premises, tire same shall be and the same is reversed, at the costs of defendants in error, and in all else said decree is affirmed. The writer of this opinion thinks that the decree should be wholly reversed, and at another hearing the plaintiffs in error should have an opportunity to prove, if they can, the sworn statements contained in their respective answers, but the majority of the court hold otherwise. Decree affirmed inpart.